Author. Sergio Fabián Ríos.
(Teacher)
(Teacher)
Universidad del Salvador
Buenos Aires.
Argentina.
Buenos Aires.
Argentina.
I.- Introduction.
The Romans called "Constitutions" to the
supreme decrees dictated in full exercise of the omnipotence of the state,
where the only life boss enjoyed a fearsome power abuse and oppression
exercised over the inhabitants of the kingdom as well as on foreign enemies. [See Antagonismos
Políticos y Sociales en Roma. Historia de Roma, Books I y II Volume 1, Theodor
Mommsen].
Meanwhile, -such as The Academic Reinaldo Vanossi teaches-, the Constitution on the Greek polis was considered more
on the idea of organization than the concept of regulatory and normative
supremacy pertaining to relations between society fundamental principles and
the state. ["University and
Constitutional Law. Fortunes and misfortunes of the chairs "].
It is clear then, that the term
"constitution" meant something very different for constitutional
democracies since the Republic of Weimar was installed, which meant in Rome
with full respect for the dictates of the "dictator or village chief"
Roman, in terms of the height of abusive exercise of power. [An example: The reign of "Tarquinius Superbus
534-509 BC].
It will take much time and civic developments to
understand the constitutional texts as we know them nowadays. It must have
abandoned the idea of military glory as the supreme object of ambition and see
instead people moving freely, placing their constitutions in the proper
position, with its "normative hierarchy" , linked to the progress and
prosperity, to safeguard social organization and protection of individual
rights.
Has been claimed a definitive and conservation
constitution as opposed to those of transition and creation Constitution
proclaims [1852 in
Argentina]. [Juan Bautista Alberdi. "Bases" and starting points for
the political organization of Argentina, hereinafter called "Bases"].
In Latin America, Juan Bautista Alberdi, -Inspirator of
the Constitution of Argentina Republic-,
had already rejected by the year 1852, most constitutions in force in South
America. Contrary quoted glowingly, the California Constitution of 1849, which
he named as "confirmation of the constitutional basis for Argentina".
He stressed his text saying he was "full of anticipation, good sense and
opportunity [and opportunity in each of its provisions ...] everything is
simple, positive practical, while being worthy ..."
In
terms of “absolute rights”, as those were called by Alberdi and Velez Sarsfield
in the controversy over the Civil Code, Alberdi stressed the contemplation of
California Constitution, and held it should not be specific matter to a Code
issues, except at most, of regulations of its text.
So,
Alberdi emphasized that the Constitution -on
matters such as "education and training of families", giving the rank
of "sanctity of the family" as a hotbed of State of the Republic-,
was the only seedbed of fertile population and social regeneration. Brought to
quote some passages of that Californian Constitution which read: "The
legislature will protect by law certain portion of the home and other property
of every householder, to avoid the forced sale (art 9th, section 15.) "
Elsewhere in his work “Bases”, said that the California Constitution applies directly and
inviolably for the support of public education, a part of state assets and
thereby guarantees the progress of their new generations against abuse or
neglect of the government. Makes education a fundamental basis of political
agreement. (Title 10). [Bases].
He also noted that the same Constitution provides for
equal tax on all state property, and lays the foundations of the system of
direct contribution, which is befitting countries called to receive from abroad
all its development, instead of the customs tax. In support of real credit,
prohibits the legislature grant privileges for establishment of banks: strictly
prohibits the issuance of all comparable to paper money issuing banks ...
[bases].
Meanwhile, in Chapter XVI of "Bases",
Alberdi maintains that civil and commercial law should not reject foreign
benefits that the Constitution attracts, since what would gain for one side
would be lost for the other. He said that "freedom in the Constitution but
chains in regulations and law, is a sure way to discredit the new system of
government and maintain the backwardness of these countries". With respect
to the latter we can see that the sense of freedom that comes with the
Constitution, -according to Alberdi-,
is not shared by the rules of inferior rank as laws and regulations.
In an attempt to convert the Constitution in the
hierarchically higher standard, [articule 31 of
The Constitution of The Argentine Republic], Alberdi said it was necessary that civil laws and trade processing
are modified and designed within the meaning of the same trends that should
govern the Constitution, and cited some examples of how regulatory laws (organic
according to his sayings) could alter
the spirit of constitutionally enshrined, namely freedom: "the press is
free, says the Constitution; but may come the organic law of the press and
create as many obstacles and limitations on the exercise of that freedom, as to
let her illusory and deceitful "; It's free suffrage, the Constitution
says, but come the electoral organic law, and force requirements and
limitations will become exceptional Lie freedom to vote; so with free trade,
etc.
- Universal
movement of codification.
Alberdi did not agree with the universal movement of
codification, while recognizing its inevitable advance. Against this,
highlighted the immense benefits of the French Civil and Commercial Code, on
which considered that the application had well deserved in the middle of Europe
as it was done.
He saw, mainly in the Civil Code (both french and argentine), its roots in Roman law, patrician for inspiration.
In his famous controversy with Velez Sarsfield [author of the Argentine Civil Code entered into force
in 1871] was strongly opposed its enacted.
He was concerned the relationship between the Code and the Constitution; its
extension; forgetting the (Argentine) national sources as accused him of
"copy". Argued that it was a contradiction that the independence
revolution were proclaimed in the Constitution while the old colonialist regime
was intended to be represented in the Code. Predicted that paradoxes such as
"democracy in the regime of State and autocracy in family law would occur;
Democracy in the city and absolutism in man".
He argued that the idea of a code was incompatible
with the idea of a country composed of many sovereign or semi-sovereign states [Argentine federal system consisting of
autonomous provinces].
As for the criticism of the extension of the Code,
Alberdi added that the Codes of freedom should be short. It is not true, he said,
that each article of the Code represents a freedom so that, the more bulky the
freer. To enshrine freedom, the article into a Code is not needed, just the
contrary, its omission.
He continued repudiate the sanction of a civil code
saying, "In a country that seeks free, freedom is presumed, the
restriction is expressed. The silence of the law is the voice of freedom".
The truth is that since 1871 in Argentina, coexist a
constitutional text (Constitution) and Civil Code about which I will write in
the next lines.
II.- Codified
system vs. non codified system.
At the dawn of the French Revolution, freedom and
individual rights, -at such a glut of
oppression and indifference against the people- they became the cornerstone
of popular clamor.
The result of the revolutionary conquest laid the
foundation for the proclamation of a Constitution firmly rooted in values of
liberty as inalienable and indivisible right of mankind.
Those same values built the foundation of the
Constitution of The United States of America (US), and most certainly inspired
to our Founding Fathers, watered these libertarian and democratic ideals, a
process that was enshrined in the Argentine Republic, with our nowadays in
force Constitutional Text of 1853.
These important links based on inalienable values
unite us Constitutionally from the eighteenth century and are the strongest
bond of civility that we have so as to resist the tyrannical onslaught.
Under these assumptions there is no
infra-constitutional legislation -including the "codes" - that can
alter that foundation which falls within the principle of the supremacy of the
Constitution.
So, we analyze, the well known division between the
systems' coded "and" uncoded "among which preferentially found,
the system of" common law "subject, both of them, to the
Constitutional Supremacy Rule.
We wonder if both systems are incompatible between
them, and must be kept into a rigid division to the point of mutually waive to
a valid and appropriate interaction to finding fair solutions to cases that are
dealt in their respective courts.
From the standpoint of the coded system would be
improper to apply the Roman maxim 'dura
lex sed lex' to laws of dubious constitutionality, even if it is the same
line of interpretation in many cases wrongly presented as the sacrosanct
solution to all the problems in a community.
This means above all that, that the systems coded or
uncoded, should not be the priority in the analysis of a specific case or the
last interpretation in the application of positive law, since the priority is
set by the search for truth for the fair solution. The violation of a right
must have its counterpart in their care. The guardianship should be sought
primarily under the Supremacy of the constitutions of liberal extraction '
An analysis in contrary would mean that the case
should be adapted to current legislation at the expense perhaps of justice
itself, when in fact, law application has to be exactly the opposite, for where
there is a right must be a remedy law that covers it, always with maximum
"alterum non laedere" which
Roman law looked despite its absolutism.
Similarly but this time in the system of “common law”,
the precedent prevalence might not be to the detriment of the Constitution that
makes to its own democratic system.
a)
Codified systems and the common law.
It is not new that there are criticisms for and against
of both systems.
Here are some of
those criticisms, starting for the codified system:
Some reviews for:
1) It provides a set of general principles within
which they have to frame the factual cases.
2) This gives itself, the scientific note to coded
system.
3) It is predictable, because of its own limits, so as
the judge works within those legal limits of the Code.
4) It put the code in the center of the legal scene
with the most and the least that this brings to standards of Superior
Hierarchy. Here is the big issue linked to the Constitution.
5) Grants part of the solution to the problem of
regulatory dispersion, gathering almost everything, in a single body
of civil and commercial law.
Some criticisms against:
6) The lack of plasticity in the practice of law,
because of the general principles subject
to the rigid texts, guides the proceedings over finding just solution of
the"case", because actually happens in practice that seeks preferably
not injure the law, forgetting in many cases, to protect the right that needs
protection as a primary task of this science.
7) Establishes, with a static policy, and a systemic
order, that will not adapt to the dynamism of reality, demanding of judges,
re-adaptations to grant equitable solutions without offending the principles
contained in the Code.
8) The full force of the Code becomes a
Sub-Constitution.
Critical, both
for and against the system of "Common Law":
Some reviews for
1) Not subject to legal principles for analyzing the
"case".
2) Despite the
absence of that scientific note, there is no risk that legal principles take
precedence to the finding solution.
3) Coherence.
Prevails the "precedent" to the application of legal precepts,
avoiding strictly certain circumstantial majorities in Congress or Parliament
so to impose certain bills that can attempt against the rules of the
Constitution.
4) The mechanism
of the "precedent" achieves continuity, since the law that inspires
them is the Constitution of the Nation, avoiding inferior standards that could
obey conjunctural issues.
5) No preferably
to be subject to the lower positive law before the Constitution.
Some criticisms against:
6) The great power given to judges has to be accompanied
by the composition of a respectable judiciary, which adheres to the
Constitution, and be far away from political issues. Llambías has called this
the reign of the judges.
7) The absence of
scientific note, is based on to the system is out of "legal
principles" interpretation. The common law does not discuss the case or
thinks in terms of general principles of law, but through its precedents
judicial accompanying his approach.
8)
Finding the right precedent for the case to be
heard at a given moment, a Herculean
task for legal practitioners. Today, the difficulty has been mitigated thanks
to the internet.
* Code and
Constitution. Operability and inoperability of Constitutional Clauses.
It is questionable whether the coded systems are
doomed to resolve disputes under its rigid structure or conversely can lift his
head to look further and in particular, to address the rights and guarantees
provided for in the Constitution and render them operational. And in this
regard, we ask what happens to the rights derived directly from the
Constitution.
To answer the latter, we must necessarily refer us to
the resolution of emblematic cases we have in the annals and continue to guide
us in everyday legal work.
At the end of the eighteenth century "Joaquín V.
González" said: "They are not,
as may be believed, declarations, rights and guarantees simple theoretical
formulas: each of the articles and clauses that contain them have binding force
to individuals to the authorities and the entire nation. Judges must apply them
in the fullness of its meaning, without altering or weaken with vague or
ambiguous the interpretations express meaning of the text. Because they are
self-defense, the unchanging heritage that makes every man, citizen or not,
being free and independent within the Nation of Argentina".
This quote brings to mind, the sentence of Judge
Alfredo Orgaz, nothing less than in the famous "Siri" case, who
argued the same idea when he resolved as member of the Supreme Court of
Argentina.
Recall that in this case, the Supreme Court had to
resolve the request of a defendant who had not, at that time (1957), a legal
figure to invoke his right; However the Court ruled in his favor, laying the
foundations of the today known as "amparo action" by revoking the
lower court judgments.
The Supreme Court, in particular the illustrious
minister Orgaz, saw in that case, beyond the current positive law and focusing
on it, opened its value in the justice mind rather than in the absence of a law
contemplated the "amparo action" not legislated by that time.
The following year, in 1958, the Supreme Court when it
ruled in "Kot" case, not only referred to above mentioned -
"Siri" case - but emphatically said, "... Trying overly
technical constructions to justify this distinction, involves to interpret the
Constitution so that it appears sheltering not only essential rights but gross
violations of human rights ". He said further: "... Such guarantees
not unilaterally serve the aggressors, to draw distinctions between them, but
those attacked, to restore their basic rights"
This leads to the thought of Alberdi, and according to
him, the concept of law, must be conceived as "the moral rule of human
conduct" which aims to connect or bind men together for the realization of
their respective development.
Specifically, Alberdi appreciated much more the
essence in implementing the law than stringency forms so admired by the Romans.
This was made known by highlighting for example, in the book "Twenty days
in Genoa" when he paused in thought as follows: "The Genoese lawyer's
practice, to refrain from using garlands and jasmine rhetoric, which could
jeopardize the simple austerity of the truth. Do not put more fire than the
conviction, which does not mean to speak without heat. They are so sober
expressions of respect and deference to the judges, as economic in terms
capable of displeasing".
In this context, putting the focus on the field of
legal dispute exists reasonable suspicion that the immediacy that offer codes
and positive legislation generally move in many cases the rights and guarantees
stemming from the constitutional text.
Conspires against the latter, technical spoiled, dividing
the constitutional clauses on "operational" and
"non-operational" which in many cases has the perfect excuse for not
applying, despite its supremacy.
In practice, the operation or functionality of a
constitutional clause depends on the discretion of judges that is to say, if
the clause is directly applicable or not operational, regarding to a
constitutional clause without regulation. Before that, the fate of legally
protected depend on that discretion, running the risk that an injustice could
be committed by the lack of implementation of a constitutional right due to
non-operability, which culminates in which safeguarded the norm at the expense
of justice value.
Without fear, I believe that this division between
operative and non-operative clauses, has been one of the most perverse attacks
that happened to the effective implementation of constitutional law and hence
to the "Justice".
Indeed, this division put a fence very difficult to
reach the Supreme Text of the Constitution discouraged its full enforcement for
years, restricting its importance to issues of political organization and poor
application to regulations regarding to
the supremacy in the field of fundamental rights relations between society and
the State and between private individuals
• The constitutionalization
of the Argentine Civil Code.
What do we talk when we addressed the issue of the
constitutionalization of the civil code?
From the experience of schools of law, many years ago
it is taught, [whom we follow
the classical authors such as Llambías], that the sources of law are "The Law", "The
Tradition", "Jurisprudence", "The doctrine of the authors
"," Equity "and" Comparative Law "
However, the Civil Code of Velez Sarsfield, [Article
16], whose validity will expire in August 2015, states: "If an issue
cannot be resolved, not by words, or the spirit of law, shall address the
principles of analogous laws; and even if the concerned has been questionable,
it was resolved by the general principles of law, considering the circumstances"
Directly, this implies that the Civil Code does not
nourished by different sources, except, those this articule indicates. Perhaps
that was the intention of Velez Sarsfield?
Whether the jurisprudence in the course of time, has
gone further that this “corcet” imposed, the fact is that Vélez limited sources
to the articule 16, moving away from the Constitutional text. Step to explain
the latter.
This leads firstly to analyze the thinking of Vélez at
the time this jurist begins his studies writing the Civil Code and in
particular, calls us to realize on the degree of attention that would have
rendered to the Constitution of 1853 during his studies of the the Civil Code
of Argentina started in 1864 and in force since 1871.
Although the studies began 11 years after the Constitution
was effective, the Code of Vélez does not register a single mention in all its
articles, about the “Magna Carta”. But, just children would attribute this
failure to the sustained controversy with his counterpart, Juan Bautista
Alberdi, since the issue occurs with other overtones of depth from point of
view of analysis of law.
Indeed, the drafting work of Velez Sarsfield, had in
view other sources. He considered for it, the Roman law, the very respectable
French Civil Code, authors such Aubry and Rau, Savigny, the outline of Teixeira
de Freitas, the work of Andrés Bello, among others. That is, their line of work
was passing by different lanes than those that inspired Alberdi to the text of
the Constitution. For example, while Velez was studying the real right of
"domain" under Roman law, Alberdi stressed freedoms contained in the
Constitution of the State of California.
While this lack of complementation did not bring an
incompatibility between the two sets of rules, because in fact, as noted above,
have lived in Argentina society for over a century; however it had installed
criteria on a very different legal analysis, for instance, the prevalence on
individual rights and freedoms are strongly attributed to the Civil Code rather
than the Constitution. Is it real?, I think it is more an illusion or a
practical convinience, than a real thing, so as we mentioned above, the
fundamentals right are contemplated in the Constitution, and is correct to be
like this.
The Civil Code is intended that each item is a
freedom, a right or a limitation. This made of it, a regulatory body extensive
and voluminous, the Code. By contrast, in accordance with the thought of
Alberdi, Codes of freedom should be short. According Alberdi is not true that
every article represents a freedom. To enshrine freedom, the article into a
Code is not needed, just the contrary, its omission is needed. [View Alberdi-Vélez Sarsfield Controversy].
I share the thought of this illustrious thinker
[Alberdi] because freedom as well as the ability of people, it is a
presumption. It is not expected that a legislative text list freedoms
besides of its limitations. And this
happens with fundamental rights such as freedom of speech and press, the
presumption of innocence, the right to travel freely in and out of the country,
the right to exercise any legal industry, the right of association, etc.
On the contrary, I do not agree with Alberdi and yes I
do with Velez Sarsfield, about “absolute rights”, such as both of them
denominate those rights, which in fact refer to the "fundamental
rights" must not be regulated by the Civil Code, as the Vélez himself
acknowledges that they have a higher status than a simple civil law, because
any day could also be revoked by Congress depending on circumstantial political
majorities. These rights, said Velez, are entered in the political code in the
Constitution, which should only be because the civil code is not its place.
Narrated far in this section gives a rough idea of how
far was one text from the other; civil law or civil code and the Constitution.
This problem did not go unnoticed by the most
authoritative doctrine Argentina. But little was done so far to resolve this
dilemma, based on a kind of dispute between the Supremacy of the Constitution
and strict and privileged application of the Civil Code and the general
principles of law.
This point is not only expressed in a simple choice
about whether judges preeminently apply a text on the other, but the question
is incarnate in the Argentine legal practitioner as a "right
mindset". This mechanical way of thinking -more of Argentine law- to find
the right solution, not always becomes the ultimate aim pursued, as it is often
displaced by the preconception priority of the law as a science in order not to
damage it, instead of thinking of doing justice in the case.
The latter should not happen if for example, would
prevail in domestic law, constitutional supremacy under the articule 31, beyond
the unfortunate concept of operational or non-operational clauses, whose creation
served only to hinder the full constitutional text as we said above.
For some years a part of the Argentina doctrine, it
has been proposed to bring the Civil Code to the Constitution.
The prestigious "National Academy of Law and
Social Sciences" of Argentina, work on it with the overturning of views
and works of prominent jurists.
Indeed, the proposal was intended to be presented as
the "modernization of the law", but, to tell the truth it responds to
a belated recognition of the unjust alienation of positive law to the
Constitution.
The Argentine Civil Code in force from 1871 to 2015
ruled the daily lives of its inhabitants with a clear predominance over the
Constitution.
As mentioned above, this mindset has installed a
legally system governed by the codification.
Early on, the training of lawyers in the School of Law
at the Argentine Republic, is focused in terms of "principles and the
legal framework to be applied to the case presented". This legal structure
belongs mainly to the Civil Code, except specific matters of constitutional
law, when in truth, the latter should be present and not only focally, in the
study of all matters of law, whatever the discipline is about.
The new Civil and Commercial Code of Argentina to take
effect in August 2015, certainly provoked a great impact in the Argentine legal
operator. Such shock led to bar associations, law schools, universities,
publishers and others, should immediately to schedule refresher courses to halt
the anxiety of lawyers, joined the hasty decision of its enactment, whom
imagined in a moment, deprived of their basic tool.
It is possible to show that this impact suffered by
the imminence of the new Civil and Commercial Code, was not envisioned so
clearly when it occured the last constitutional reform of 1994, because, beyond
logic concerns on the modification of the organic part of the Constitution ,
-such as, duration of the presidential term, the limited-election and some
concern about what would happen with the dogmatic part of the text, referring to
the rights and guarantees; it was not noticed in the legal operator, a similar
notorious concern as happened with the implementation of a new civil and
Commercial Code of the Nation.
Someone will say, it was logical that not cause a
similar stupor the constitutional reform, as happened with the new Civil and
Commercial Code, because the rights and guarantees provided for in the dogmatic
part of the Constitution were not altered. While this is true, strictly
speaking, the constitutional reform incorporated new rights and guarantees,
such as consumer rights, access to information, habeas data, among others.
Anyhow, to the date, in many judgments not even take in account and worse,
ignore his constitutional entrenchment, as for example with the figure of "affected"
in terms of consumer rights provided for in art. 43 of the Constitution.
The President of the Supreme Court of Justice of the
Nation, gave many presentations in regard to the new Code, which is one of its
authors. He had to bring calm to lawyers and judges to say that the new
standard should not worry because mainly tried to gather in this new regulatory
body, the latest case law already applied in various forums.
The truth is that such an impact with the enactment of
a new Code, involves altering one of the most basic tools for lawyers who have
to practice law in its two expressions such as counseling and litigation. The
attachment of the legal operator to the Civil Code is clearly different to what
happens with the Constitution.
Now the question arises regarding to the new Civil and
Commercial Code, if it gives reply to that current of constitutionalization of
civil law. [Code].
No doubt that has been achieved in certain aspects,
significant progress on put close to the new Civil and Commercial Code, the
Constitution. For example, on the general principles of consumer protection has
been established guidelines that act as minimum protection.
In the field of interpretation a "dialogue of
sources" [Draft Civil Code and
Commercial Procedure] is set, so that the code retrieves a centrality to
enlighten other sources.
But this interpretation mainly encouraged to read from
the beginning in the text of the new code [Preliminary Title. Chapter 1. The
right] Article 1 says. Sources and application. Where this Code applies must be
resolved according to the laws that are applicable. The interpretation must
comply with the Constitution and treaties to which Argentina is party ...
It is very important that from the beginning, the
first article of the new Civil and Commercial Code, mentioned the Constitution,
which did not occur with the old civil code.
Now, we wonder, is this enough to consider that there
has been the constitutionalization of the new Civil Code?. The answer is
clearly "no", because as we indicated above, the legal operators in
Argentina have the mechanics of thought put into the general principles of the
Code and not in the text of the Supreme Law, except for particular issues. So
as has repeatedly said the co-author of the new Code, Dra. Kemelmajer Carlucci,
with this new code should change the mindset of judges and all legal operators.
In order the changes embodied in the new Code be
effective, judges, lawyers and all the actors of Law involved, should change
their pattern of thought and adapt to the new era which aims install this huge
company.
Corollary.
To achieve the proper interaction of the Civil Code
and the Constitution, it is required that the text of the latter be put at hand
easily as it is easily handy the civil code for law operators.
It is therefore imperative that the rights and
guarantees provided for in the Constitutional text be put in function without
exception nor excuses.
Judges and lawyers, the latter by promoting the causes
involved, should take into view the value "justice" and the
protection of the rights involved, above the regulatory rigidity which has
often spoiled the ultimate purpose of the rights which lies mainly in achieving
"justice" what will become in social peace in the community.
Regardless of whether a nation is subject to the coded
system, you cannot lose sight of one source as important as is
"customary" law, since it precedes the law and how Linares Quintana says, remains at your
side to translate aspirations.
This source provides another point of reconciliation
between the codified systems and the "common law". She will help to
moderate the sharp division between the two systems, implementation and
interpretation of law, when all he brought so far is the famous "legal
scandal" by arriving at different solutions in similar cases, where
necessarily one of them will have been unjust. While this thought is usually
applied to domestic law need not be alien to international law, at least in the
Western world who share "constitutional democratic" systems with
similar values.
What evolved was believed to pass from the custom that
prevailed in ancient times, to the written rule, devoted to the broad task
begun by Napoleon and then extended during the XIX century in the whole
civilized world [Treaty of constitutional interpretation. Second Linares
Quintana. Tribute to Karl Loewenstein] really meant a model of inflexible
thinking in the interpretation and application of law, due to the rigid nature
forcibly containing the law into their statements.
Both the usus iuris as the common conviction of social
behaviors are elements of social dynamics that can not be immersed into
watertight compartments. The safe conduct of this is the constitutional text
content short and blunt, with predominance of liberty without more detail in their
field with, of course, the limit not to harm anyone.
Mainly, the Code shall regulate the relationship
between individuals and in some respect with the state, but must not forget
their inferior hierarchical status to the Constitution where we will find our
own limit and guidance in interpretation.
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Jorge Reinaldo Vanossi.
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Juan Bautista Alberdi.
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Copyright. All rights reserved.
